“A long time ago, the courts crafted the so-called state actor defense, which tolerates what otherwise would be anticompetitive activity in the name of some dedicated state police power interest — generally health, welfare, safety of the population,” Stuart Gerson, a member of Epstein Becker Green and former acting Attorney General of the United States, told MobiHealthNews in an interview. “It’s easy to declare that if you’re a board. But the nut of the NCDB case is, in order to avail themselves of the state action defense, the board not only has to be duly constituted, but the activity that it is involved in needs to be directed by the state. There has to be what’s called ‘active supervision.’ And that’s what the Supreme Court made clear.” …

“What I know is that state medical boards are increasingly interested in telemedicine, and there is at least a threat of undue regulation,” Gerson said. “I don’t know of a specific case. We have clients in our firm in that space, none of them has felt the need, at least yet, to commit to litigation. But I think it’s a plausible threat, depending on the state.”